Thursday, March 02, 2017

Well, Infineon has responded to the Joint Statement by 55 Groups, and soon there may a response to the response by Infineon... It was all reported in the Business & Human Rights Resource Centre Website - follow the link to see the statement and the response. For ease, I have also posted the Infineon response and the original Joint Statement "INFINEON MUST STOP UNION BUSTING AND DISCRIMINATION AGAINST UNION
LEADERS -Reinstate Zulfadlee Thye Abdullah, President of Infineon Technologies
Melaka Workers Union"

The Infineon response:-

Dear Ms Isabel Ebert,

Infineon employs ca. 8,000
employees in Malacca, Malaysia. The plant is Infineon’s biggest semiconductor
production site worldwide. Infineon is well respected as a good and responsible
employer in Malacca, and has been cultivating long-term and trusting
relationships with employee representatives. Infineon
enjoys an excellent reputation in Malaysia.

The report of January 31 by
Good Electronics is known to us. Unfortunately the report contains factually
incorrect and subjective conclusions. There is no truth to the allegation that
Infineon is “union busting” or discriminating against union leaders and
officers. The insinuation that Infineon is taking these steps shortly
before negotiations for the next Collective Agreement begin, just to prejudice
union members, is ignoble. That the events drove the timing of Infineon’s dismissal/disciplinary
action; Infineon was not in control of these events. What is true is that Infineon
does not tolerate or condone misconduct by its employees at any time; whether
or not they are union leaders and officers is irrelevant.

Infineon is committed to human
rights and worker rights. Infineon does not impinge on its employees’ freedom
of association or participation in union activities. Union members (and union leaders/officers) are entitled
to attend union activities when they are free (e.g. while on annual leave or on
non-working days). However, the company has an obligation to investigate cases
of apparent misconduct, even if those cases involve union leaders and officers.
There is neither preferential treatment nor discriminatory treatment for union
leaders and officers.

Infineon gave notice to an
employee at the Malacca production site, who has been president of a local trade union since 2005.
Reason for the dismissal was a case of misconduct by that employee in autumn 2016. The employee
did admit his misconduct towards the company and the case is well documented. Infineon does not
want to go into more details until the administrative/judicial process brought
by the employee is completed.

We can assure you that
Infineon did not make that decision easily and has carried out an in-depth examination of the case.
Considering compliance guidelines and in accordance with Malaysian labour laws
the local management has hereby concluded that this form of misconduct cannot
be tolerated. Also Infineon has
taken decisions and dismissed employees for clear cases of misconduct – in
compliance with the common application of Malaysian law.

Infineon also investigated 6
other union leaders for misconduct and discovered that they acted contrary to
Malaysia’s Industrial Relations Act and contrary to the existing Collective
Agreement between the union and Infineon Malaysia. Therefore, the disciplinary
action against them was justified by law. It was not done as an act of union
busting, nor in violation of any of Infineon’s internal policies or the
employees’ freedom of association.

Integrity is our guiding
principle in dealings with our customers, shareholders, business partners, employees
and the general public. We expect from all employees on all levels – especially
high-ranking colleagues – a professional conduct according to the rules.
Outlining the important regulations and provide support in legal and ethical
questions, the Infineon business conduct guidelines apply to all persons
employed at Infineon and members of corporate bodies of Infineon Technologies AG and its
affiliates worldwide. We are absolutely bound by it.

The said Joint Statement that INFINEON was responding to is as follows:-

We, the 55 undersigned organisations and trade union are shocked to hear
about the wrongful termination of Muhammad Zulfadlee Thye Bin Abdullah, the
President of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja
Pekerja Infineon Technologies (M) Sdn Bhd) at INFINEON in Malacca, which is said
to be the largest assembly of INFINEON with a workforce of about 8000
people.Zulfadlee, an employee since
1998, has been the President of the Unionsince 2005.

INFINEON is a German Company that
produces, amongst others, electronic and auto components, which are said to be
used by major Brands including Apple, BOSCH, Philips, Microsoft, Hewlette
Packard, Dell and Continental.

On 13/12/2016, Zulfadlee was
terminated on the grounds that he ‘committed
the act of malingering’, with reference to a sick leave obtained on 18/10/2016
from a doctor, Dr Aw Cheng YewofKlinik Melaka, which is a panel clinic of the
Employer. The basis of the allegation seems to be because he was present at an
activity of the Selangor Division of the Malaysian Trade Union
Congress(MTUC)in Putrajaya on the same
date when he was on sick leave.As such,
one may assume that maybe the charge was simply pretending to be sick (or
faking illness) for the purpose of avoiding work or duty.

It must
be stated that the reason for termination used was not an employment misconduct
stated in INFINEON Technologies (Malaysia) Sdn. Bhd’s document entitled Policy
for Misconduct and Disciplinary.

Further,
the word ‘malingering’ is not a commonly used word, and as such many are
unaware of the meaning of that word. To compound matters, in this case, the
word ‘malingering’ allegedly was never even clearly explained to Zulfadlee,
whose mother tongue is the Malay language. When such English words are used in
a charges levied against a worker, and then not explained clearly, it will have
a tendency to be confusing and may result in injustice.

In law, Zulfadlee
was entitled to 22 days of paid sick leave every year, and it must be pointed
out that he was examined by a qualified doctor who concluded that he was entitled
tosick leave, and a medical
certificate was signed and issued by the said doctor. A sick leave is given
only when the doctor, after examining decides a worker is not medically fit to
perform his/her duties at work.

There was no question of Zulfadlee
lying or pretending to be sick, for on the subsequent day he went to see a
specialist doctor, who allegedly discovered that he had a stone in his bladder
and he was then given further sick leave for 3 days on 19/10/2016, 20/10/2016
and 21/10/2016. Despite being on sick leave, Zulfadlee did come to the office
for a few hours to do some urgent work on 2 of these days but he was not
charged for committing the ‘act of malingering’ for these days.

Being on a sick leave does notmean that one is to be confined at home and
bed rest, and cannot do any other things including also attending some union
meeting or activity – a sick leave only means that he is not medically fit for
work on the said day, and in law he becomes entitled to paid sick leave.

On 18/10/2016, Zulfadlee said that
he had no plans whatsoever to go to the Putrajaya union activity with his union
members who planned to go. It was only after he had obtained medical leave whilst
he was sending off the union members heading to Putrajaya, that he was convinced
by his fellow union members and suddenly decided to follow them in the bus.

Now, even if an Employer disputes
the Medical Certificate issued by the doctor, then the Employer should
reasonably have taken action against the doctor and/or the clinic – not with
the employee.It must be pointed out
that generally a panel clinic of the employer, are less likely to simply issue
Medical Certificates to employees unless the doctor is convinced that the said
worker is entitled to sick leave. In this case, the Employer really had no
reasonable basis to even suggest that Zulfadlee was ‘malingering’ or lied to
obtain the sick leave. In such health matters, the Employer is certainly not
competent – only the qualified doctor is.

We do not believe that any failings
of a doctor, if there even is, should ever be blamed on a worker, and certainly
not be used as justification for termination.

Further, attending or participating
in a union activity cannot and should never be an employment misconduct and/or
a breach of the employment contract.

ANTI-UNION ACTION & DISCRIMINATORY ACTION AGAINST UNION PRESIDENT

As such, we are of the opinion that
the termination of the Union President may really notbe because of an ‘act of malingering’ by an
employee, but simply a union busting action targeting the Union President and
the Union.

In INFINEON’s letter dated
6/1/2017, rejecting Zulfadlee’sappeal
against the termination it was stated, amongst others, ‘…The basis of our
decision was premised on the fact that the Management could not condone nor
mitigate punishments for a serious
act of misconduct committed by a Union President leading the employees
of Kesatuan Pekerja - Pekerja lnfineon Technologies Malaysia itwu,’ This letter
was signed by Lee Cheong Chee, the President & Managing Director of
lnfineon Technologies Melaka.

The
said letter, also did state, ‘…your illustrious career and contributions to the
Company has been well acknowledged through your progress during your tenure. While that may ordinarily be a mitigating
factor in considering any appeal, the Management has decided that theyour act of malingering is deemed to be
unacceptable and is aggravated in view of you being the Union President at the
point the act of misconduct was committed…’

Besides
Zulfadlee, 6 other members of the Executive Committee of the Union, including
the Vice President and the Secretary, were also targeted and subjected to
disciplinary action – and some of this had ended with a stern warning, whilst only
the Union President was terminated.

Considering
the fact that out of the 40 over employees that participated in the Union
program on 18/10/2016, and only the President and 6 of the Union leaders have
been subjected to disciplinary action, it certainly looks that INFINEONmaybe discriminating against employees who are leaders of the Union, and
maybe reasonably said to be an act of ‘union busting’.

The timing of these
disciplinary actions and the termination of the Union President, when the Union
and INFINEON is starting negotiations concerning the next Collective Bargaining
Agreement, whereby the first meeting is scheduled for 23/1/2017 is most
disturbing. Members of the Union will most likely be prejudiced by this.

It looks like the Employer’s
actions in this case was maybe to instill fear in the Union, its members and
other employees, which may affect the effectiveness of the trade union. These
actions of the Employer would impact on the duty and obligation of Unions to
fight for better rights and working conditions, highlight future wrongdoings,
and fight against violation of the worker rights. It is failure to recognize
and respectthe freedom of association.

The failure of this Union
and/or its members to openly protest the wrongful dismissal of the Union
President indicates that the Employer’s strategy to create a docile and
compliant union maybe working. It may also seriously affect the upcoming
Collective Bargaining Agreement to thedetriment of employees and Union members.

OBLIGATION TO UPHOLD WORKER AND UNION RIGHTS, AND FREEDOM OF
ASSOCIATION

INFINEON Technologies (Malaysia)
Sdn. Bhd.,a subsidiary of INFINEON, a German company, in this case seem to have
acted contrary to the INFINEON’s own policy and Code of Conduct, Organisation for Economic Co-operation and Development (OECD) Guidelines,
Electronic Industry Citizenship Coalition Code of Conduct, UN standards and
principles; and other relevant standards and good practices.

Brands and corporations that do
have INFINEON in their supply chain also have
the obligation to ensure that justice be done, and that Codes of Conducts or
Policies not be violated by reason of these action/s of INFINEON, vide it’s
Malaysian subsidiary, INFINEON Technologies (Malaysia) Sdn. Bhd, including the
discrimination and the wrongful termination of the Union leader.

Justice demands that INFINEON
Technologies (Malaysia) Sdn. Bhd should immediately reinstate Zulfadlee without
electing to simply just wait for the long drawn out court process in Malaysia,
that could take even 5 - 9 years before court may award victory to a wrongfully
terminated worker. As such, unless INFINEON immediately reinstates Zulfadlee,
an employee of INFINEON for 18 years,great injustice would be done to this worker who has wrongfully been
deprived of his employment and income that is so needed for him and his family
to survive.

Unjust Malaysian laws at present,
states that if the worker cannot be reinstated, he will be awarded compensation
in lieu of reinstatement for just a maximum of 24 months, when previously this
compensation would have been payment of all income worker would have earned
from date of wrong dismissal until the date of judgment(or reinstatement). The
new amended limit is not anymore a deterrent for employers seeking to
wrongfully get rid of employees, especially worker leaders.

Further, in the case of a Union
leader, the chances of getting employment with any other employer, especially
in the same sector, is also most difficult compared to other workers.
Termination of strong Union leaders is grossly unjust to the Union and its
members. Without immediate reinstatement, great injustice will be done.

Therefore, we

Call for the immediate
reinstatement of Zulfadlee Thye Bin Abdullah, the President INFINEON
Technologies Workers Union;

Call for the immediate withdrawal
of disciplinary action/s against other Union leaders and/or members, and/or for
the revocation of any punishment that has already been handed out;

Call on INFINEON and its
subsidiary, INFINEON Technologies (Malaysia)
Sdn. Bhd, to respect and promote worker and trade union rights, and cease
discrimination against Union leaders, and also cease union busting activities.

Call on
Apple, BOSCH, Philips and other companies that has INFINEON in its supply chain
to immediatelyensure that INFINEON
respect the Freedom of Association of Workers, Worker and Trade Union Rights;

Call on
Germany to ensure that INFINEON comply with the OECD Guidelines, United Nations
andInternational Labour Organisation (ILO)
standards, principles and best practices, and other similar obligations to
ensure that human rights and worker rights are respected, protected and
promoted;

Call on INFINEON and INFINEON Technologies Melaka to respect and promote human rights,
including worker and trade union rights

Charles Hector

Syed Shahir bin Syed Mohamud

Mohd Roszeli bin Majid

Pranom Somwong

For and on behalf of the 55
organisations, trade unions and groups listed below

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